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NSW Tribunal reform: the building expert’s next business opportunity?

From 1 January 2014, the Consumer Trader and Tenancy Tribunal (CTTT) will close its doors and the NSW Civil and Administrative Tribunal (NCAT) will commence operation. For (some) building experts, the change may present an opportunity for increased and more frequent expert consultation work. Others may be left behind.

Building experts in the CTTT are most frequently, but not exclusively, seen in:

Home building

Retirement villages;

Strata and community schemes; and

Retail leases lists.

Currently the rules and regulations of the CTTT together with the chairperson’s directions determine how they conduct themselves before the Tribunal, how their evidence is used, how they are cross-examined and how they are paid.

From 1 January 2014, the above disputes, together with the workload of 22 other Tribunals will be processed by the NCAT.

The Consumer, Trader and Tenancy Tribunal Act 2001 (Cth), its regulations and rules will apply no more, other than in an impressively long trail of appeals.

Expert witness services on or after this date will be subject to new (and currently unpublished) rules and regulations.

Party-appointed experts vs. assessors

The NCAT Project Team is yet to finalise the NCAT rules and regulations to apply to expert evidence. They have however telegraphed that they are scrutinising the role of experts, both the party-appointed and tribunal-appointed varieties.

Although the CTTT legislation allows for use of tribunal-appointed experts (known as ‘assessors’), their appointment is very rare. Where expert evidence is permitted, the CTTT almost always relies on the reports and testimony of party-appointed experts. The NCAT Project Team attributes this largely to uncertainty as to the rules regarding use of the evidence and the payment of the tribunal appointed variety.

This means that, to date, the work available to building experts has been determined by the expert’s ability to source opportunities through parties to CTTT disputes. It has also often meant two experts on an issue, ie one on each side, whereas an assessor involves only one.

Most recent postings disclose that the NCAT Project Team’s position is that:

NCAT:

Should be able to order the parties to pay or contribute to theassessor’s costs;

May adopt or reject findings without the parties’ consent; and

Should issue clear guidance as to when an assessor should beappointed.

When an assessor is appointed, the parties should be prohibited fromappointing their own expert witnesses or tendering any expert reportswithout consent and/or leave of NCAT.

A move from party-appointed expert witnesses to assessors could mean less expert witness work. Where there was once an expert for each side, there would instead be only one. A smaller amount of building experts could provide services for a wider range of matters. One would also expect that the amount of cross examination would reduce, making the proceedings more efficient.

Ultimately, building experts who align themselves to the NCAT early could be best-placed to benefit from the change and secure continuity of work.

Building experts might consider keeping up to date on NCAT developments, and develop a business strategy to accommodate the new rules and regulations after they are released.

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